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Issue of Discrimination of Women in Law & Practice http://www.ohchr.org/EN/Issues/Women/WGWomen/Pages/WGWomenIndex.aspx
UN Gender Expert Group Encourages
Review of Egypt’s Draft Constitution to Ensure Conformity with Its Obligations
under International Law on Equality and Women’s Human Rights
GENEVA (14 December 2012) – The United Nations Working Group
on the issue of discrimination against women in law and in practice expressed
deep concern regarding equality, non-discrimination and protection and
promotion of women’s human rights in the final draft of the new Constitution
which was approved by the Constituent Assembly on 30 November.
It calls upon the Egyptian Government to abide by
commitments made through the ratification of international instruments to which
it is a party, including the Convention on the Elimination of All Forms of
Discrimination against Women and the International Covenants on Civil and
Political Rights and Economic, Social and Cultural Rights, which obligate
States’ parties to ensure that the Constitution and other legislation are
compatible with the principle of non-discrimination against women, and equality
of women with men.
“Key opportunities have so far been missed,” stressed
independent expert Kamala Chandrakirana, who currently heads the UN expert body
charged with identifying ways to eliminate laws and practices that discriminate
against women, and making recommendations on implementation of the law and
empowerment of women. “We are concerned that almost no women were represented
in the Constituent Assembly charged with drafting the new Constitution and that
women’s perspectives were grossly under-represented in the final draft.”
“Political transitions offer a unique opportunity to
address inequalities of the past, advance women’s human rights and ensure that
equality between women and men is one of the foundations on which the new
legal system is built as indeed we emphasized in our report to the HRC in
2012*”. However, she said, “despite offering unprecedented opportunities for
progress, political transitions can result in regression and bring new forms of
discrimination.”
The UN expert group has been closely following unfolding
events in Egypt and takes note of the planned referendum on 15 December. It is
of the view that critical review of the draft Constitution is still necessary.
While the Working Group welcomes a number of positive
provisions on human rights in the draft Constitution, including free maternal
and health services, it draws attention to issues relating to equality for
women that need to be brought in line with international human rights
standards.
The experts acknowledge that the final draft Constitution
includes in its preamble a general principle which provides that “equality and
equal opportunities are established for all citizens, men and women, without discrimination
or nepotism or preferential treatment, in both rights and duties”. It
also provides “that all citizens are equal before the law and have equal public
rights and duties without discrimination”.
However, crucially, it does not include in its substantive
provisions the guarantee of non-discrimination based on sex necessary to give
effect to the principle of equality between men and women in the preamble and
in accordance with Egypt’s international human rights obligations.
Furthermore, the Working Group notes that the implementation of temporary
special measures aimed at accelerating de facto equality of women in
subsequent legislation might be obstructed by the formulation in the preamble.
According to article 2, Islam is the religion of the State
and the principles of Islamic Sharia are the principal source of legislation.
Although article 6 espouses democratic principles, including citizenship on an
equal basis, political pluralism, separation of powers, and the rule of law, as
well as respect for human rights and freedoms, the experts expressed concern
about the absence of a provision incorporating international law, including on
women’s human right to equality, into the domestic legal order and stipulating
its primacy.
“Treaty bodies regularly recommend that States guarantee
women’s human rights in the national Constitution and thus ensure that they
prevail over inconsistent laws of lesser status” Ms. Chandrakirana said.
Article 2 provides that Islam will be the principle source
of legislation and article 3 provides that Egyptian Christians and Jews
personal status will be regulated under their religious laws.
However, there is no provision that women’s right to equality in the family will
be respected, protected and fulfilled by the State in accordance with
international human rights standards. In addition, article 10 provides
that “the family is the basis of the society and is founded on religion,
morality and patriotism. The State is keen to preserve the genuine character of
the Egyptian family, its cohesion and stability, and to protect its moral
values, all as regulated by law.”
Over the last 30 years, human rights mechanisms have
emphasized that violations of women’s right to equality cannot be justified by
reliance on religious or cultural tradition. The experts also noted the absence
of protection for women of diverse beliefs and opinions, religious or other,
against any form of discrimination and exclusion.
The Working Group notes that article 4 extends the powers of
the independent Islamic institution Al-Azhar, stating that “Al-Azhar Senior
Scholars are to be consulted in matters pertaining to Islamic law,” which puts
it effectively in charge of interpreting all Sharia-related matters. The
experts urged the Egyptian authorities to clarify that measures will be taken
to ensure that interpretations provided by this body to the executive,
legislature and judiciary will be brought into line with the legally binding
international instruments Egypt has ratified, including on women’s human
rights.
“We would also like clarification on how the independence of
the judiciary, and in particular of the Supreme Constitutional Court, an
independent judicial body provided for by article 175 to exclusively exercise
judicial control of the constitutionality of laws and regulations, will be
guaranteed, as well as women’s equal representation in the Supreme
Constitutional Court.”
“We urge the Egyptian Government to ensure women’s full and
equal participation in all processes related to the political transition, to
guarantee their freedom to express their views, to be protected against
violence in their political and public activities and have their voices
incorporated in public discourse and in shaping the society. Further, the
Government should ensure that the Constitution provides the strongest
guarantees to advance equality and women’s human rights in line with Egypt’s
obligations under international law,” Ms. Chandrakirana underscored.
(*) Read the Working Group’s first report:
####
The Working Group on the issue of
discrimination against women in law and in practice was established by the
Human Rights Council in 2010 to identify ways to eliminate existing
discrimination in law and practice, and helping States to ensure greater
empowerment and autonomy for women in all fields. The Group is currently
composed of four independent human rights experts: Kamala Chandrakirana,
Chairperson-Rapporteur (Indonesia); Frances Raday,Vice-Chairperson
(Israel/United Kingdom) Emna Aouij (Tunisia); Eleonora Zielinska
(Poland) and Patricia Olamendi Torres (Mexico). They are independent from any
government or organization, and serve in their individual capacities. Learn
more, visit: http://www.ohchr.org/EN/Issues/Women/WGWomen/Pages/WGWomenIndex.aspx
Convention
on the Elimination of All Forms of Discrimination against women: http://www2.ohchr.org/english/law/cedaw.htm
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please contact: Nathalie Stadelmann (+41 917 9104 / nstadelmann@ohchr.org) or write to wgdiscriminationwomen@ohchr.org